[2007] KECA 98 (KLR)
The Court of Appeal found that while the applicant had demonstrated that the appeal was arguable on a prima facie basis, he failed to show that the appeal would be rendered nugatory if the stay was not granted. The respondent, being a bank, would be able to refund the decretal amount if the appeal succeeded....
Source-derived case information.
- Citation
- [2007] KECA 98 (KLR)
- Parties
- Applicant: John Elloy O. Nyasoro; Respondent: National Bank of Kenya Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- ? 292 of 2006
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Stay of Execution, Appeals Process, Decretal Amounts, Interest Awards
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Elloy O. Nyasoro
Applicant
National Bank of Kenya Limited
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant has demonstrated an arguable appeal to warrant a stay of execution.
- 2 Whether the appeal would be rendered nugatory if stay is not granted.
Ratio Decidendi
The Court of Appeal found that while the applicant had demonstrated that the appeal was arguable on a prima facie basis, he failed to show that the appeal would be rendered nugatory if the stay was not granted. The respondent, being a bank, would be able to refund the decretal amount if the appeal succeeded. Therefore, the applicant did not satisfy both limbs required for the grant of a stay of execution under Rule 5(2)(b) of the Court of Appeal Rules. The application for stay was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application for stay of execution is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL OF KENYA AT NAKURU
Civil Appli. Nai. 292 of 2006 (164/2006 UR)
JOHN ELLOY O. NYASORO ………………………………….. APPLICANT
AND
NATIONAL BANK OF KENYA LIMITED…………………. RESPONDENT
(Application for stay of execution of the decree and judgment of the High Court of Kenya at Nakuru (Mr. Justice Luka Kimaru) dated 15th June, 2006
in
H.C.C.C. NO. 374 OF 1995)
**********************
RULING OF THE COURT
The applicant seeks an order under Rule 5(2)(b) of the Court of Appeal Rules that there be a stay of execution of the decree of the superior court in Nakuru H.C.C.C. NO. 374 of 1993 pending the hearing and determination of Nakuru Civil Appeal No. 19 of 2006.
The applicant on 15th June, 2006 appealed against the judgment and decree of the superior court in Nakuru H.C.C.C NO. 374 of 1993 whereby the superior court entered judgment against the applicant for Shs.14,104,129/60 together with interest at21% p.a.
The principles upon which this Court exercises its unfettered discretion to grant a stay of execution, among other things, are well settled. The discretion must be exercised judicially and before the court can exercise its discretion in favour of an applicant, the applicant must show both that the intended appeal or the appeal is arguable, that is to say, that it is not frivolous, and, secondly, that, unless the application for stay of execution is granted the intended appeal or appeal will be rendered nugatory.
The application is supported by the affidavit of John Elloy Nyasoro, the applicant herein.
The applicant states that he has an arguable appeal with very good prospects of success for the reasons that, the court awarded Shs.14,104,129/60 which sum was not pleaded; the court awarded interest at the rate of 21% p.a. which was never pleaded in the plaint and that the amount awarded by the court was not supported by any evidence.
We have considered the application. We are satisfied that the applicant has shown on prima facie basis that the appeal is indeed arguable.
The applicant further states that if the respondent is not restrained from executing the decree the applicant will suffer unnecessary hardship as the respondent is holding his title documents. The respondent is a bank. The applicant has not said that the respondent will not be able to refund the decretal amount if the appeal succeeds. Indeed, the applicant’s counsel concedes that the respondent, being a bank, will be in a position to refund the decretal amount if the appeal succeeds. In the circumstances, the applicant has not shown that the appeal would be rendered nugatory if the application is not allowed.
In the result, the application has no merit. We dismiss it with costs to the respondent.
Dated and delivered at Nakuru this 2nd day of March, 2007.
P. K. TUNOI
………………………
JUDGE OF APPEAL
S. E. O. BOSIRE
………………………
JUDGE OF APPEAL
E. M. GITHINJI
………………………
JUDGE OF APPEAL
I certify that this is a
true copy of the original.
DEPUTY REGISTRAR